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Reproduced with permission from the Pace Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999) 3 - 39

A Comparison of Buyer's Remedies Under the CISG with the Latin American Legal Tradition

Alberto L. Zuppi [*]

I. Introduction

II. Similarities and Differences

III. Buyer's Remedies

A. Remedies Which Seek to Save the Contract
1. Fixing an additional time for performance
2. Requiring performance
3. Demanding substitute goods or repair
4. Reducing the price
5. Postponing buyer's performance
B. Remedies Under Latin American Legislation Which Seek to Save the Contract
1. Deferring performance in general
2. Refusal to accept delivery before fixed time or in different quantity than contractually agreed
3. Postponing payment
4. Claiming damages
C. Remedies Which Seek the Contract's Termination
1. Declaring the contract avoided because of sellers fundamental breach
2. Avoidance in case of non performance within the additional period
3. Anticipatory repudiation: declaring in advance the termination of the contract
D. Remedies Which Seek Damages as Reparation
1. Claiming damages
2. Measurement of the damage
3. Damages in conjunction with other remedies
4. Moral damages
5. Exercising the right to retain the goods
6. Requesting interest
E. Examples of Latin American Remedies for Breach of Contract Not Found in the CISG
1. The right to obtain performance by a third party
2. The Argentine "astreintes"
3. Avoidance in instances of unforeseeable excessive hardship
4. Laesio enormis
IV. Conclusion


I. INTRODUCTION [1]

The UN Convention on Contracts for the International Sale of Goods (CISG) [2] has received considerable attention in Latin America. Representatives of eleven Central and South American states participated in its development at the Vienna Diplomatic Conference, and five of those nations later ratified the Convention.[3] Today in those countries, the CISG has been addressed in both domestic case law and scholarly articles and other related literature.[4]

The CISG reflects a successful compromise of different legal traditions, reached after two generations of international negotiations, where the Latin American perspective was introduced and incorporated, both as representative of the civil law tradition and as that of developing countries.[5]

Scholars and practitioners of all countries are often confronted with the ClSG's advantages and disadvantages. In spite of some initial reticence to accept CISG contractual application, [page 5] after more than ten years of international application, this Convention has proved its merits as a fair and acceptable accommodation of different legal cultures and interests. This paper compares CISG remedies with Latin American law in the case of a seller's breach of duty. The objective of the comparison is to try to foresee where difficulties may arise and the direction regional case law is apt to take.

Often in this paper I refer to a Latin American civil law tradition. This reflects the specific influence and reception in Latin America of the Roman law system, the former Spanish colonial legal culture, and the strong impact of the French Civil Code. This basic framework also incorporates legal influences from Germany, Italy, the Civil Code of Louisiana, and some Creole institutions.

One word needs to be said concerning legal text translations used in this paper: All translations from Spanish into English were done by the author. In the description of legal situations, the ClSG's English vocabulary is frequently used, despite the accuracy of better translations found, for example, in the UNIDROIT Principles.[6] This has resulted in a monochordic legal text but, hopefully, one that is nevertheless accurate and preserves the ClSG's international idiom.

The first part of this paper briefly examines the main points of similarity and difference between the CISG and the Latin American legal tradition. The second part focuses on a specific CISG subject: buyer's remedies in case of seller's breach of the contract. CISG remedies will be compared and classified according to three different types of objectives: A) remedies which attempt to save a failing contract; B) remedies which seek to declare the contract avoided or cancel the contract; and C) remedies which pursue compensation of damages. In the last part of this paper, some Latin American remedies that were not considered by the CISG will be discussed.[page 6]

II. SIMILARITIES AND DIFFERENCES

A seller's main duties are stated in CISG Art. 30: He must deliver the goods, hand over any related documents and transfer the title in the goods. National law regulates the way such transfer of title is completed, concerned warranties against claims or rights of third parties, and the standard for a defect-free condition of the purchased merchandise. Usually, Latin American codes declare that obligations of the seller are reduced mainly to two: Delivery (or traditio) and warranty.[7] Some Civil Codes, like the Bolivian and Paraguayan laws, further describe seller's duty: He must make transfer of the title in the goods to the buyer if this was not an immediate effect of the contract.[8] The Peruvian Civil Code states as a seller's fundamental duty to improve ("peffeccionai') the transfer of title in the goods.[9] This point is seen by other Latin American law texts as a consequence of the good's delivey ("traditio") as is the case of Guatemala's Civil Code.[10] Some Commercial Codes list a set of circumstances that are considered cases of symbolic delivery of merchandise ("enfrega simbólica").[11]

Delivery of documents related to the merchandise is specifically regulated by Bolivian, Chilean, Ecuadorean, and Peruvian law. Other Latin America law refers indirectly to delivery of documents when regulating the delivery of accessories of the purchased goods.

The laws of Argentina, Bolivia, Dominican Republic, Guatemala, Panama and Paraguay require, as a seller's duty, that the seller maintain merchandise in the same shape and condition as that of the time when it [page 7] was sold. Delivery expenses are charged to the seller by all considered Latin American legislation.

Latin American law does not speak of "fundamental breach" as does CISG Art. 25. Nor does it refer to the remedy of delivering substitute goods or making up deficiencies in the goods. These rules, however, are found by the general remedies against hidden vices or redhibitory defects.[12] A similarity to fundamental breach is, however, contained in the 1994 Peruvian Civil Code, which refers to a seller's "fundamental duty" to perfect the transfer of title in the goods.[13]

A claim for damages in Latin America always means a combination of "daño emergente" -- damages that can be expected to result from a breach -- on one hand, and on the other hand, "lucro cesante" future earnings lost as a result of contract avoidance. However, the Latin American texts add such specific elements to the damage description as legal costs ("costar y costos"), taxes ("impuestos" or "tributes" or "tasas") and moral damages or compensation for pain and suffering ("daño moral").

Only the Commercial Code of Uruguay contains a clause similar to CISG Art. 2(a), listing a set of non commercial sales.[14] But when all Latin American countries are examined, they distinguish between civil and commercial sales. As a general principle, when the subject is not commercial, it will be regulated by the Civil Code; when it is commercial, the Civil Code regulates all questions not covered by the applicable commercial law. This distinction between civil and commercial sales is not merely formal. It has a bearing on not only the applicable law in a specific transaction but also the applicable statute of limitations and the jurisdiction and competency of the tribunal to address conflicts that might arise between parties. Although there have been some attempts to unify this system, up to now the division between civil and commercial sales remains.

Despite being an international compromise -- a text involving several legal traditions -- from the Latin American point of view, the CISG [page 8] brought not only concessions to common law, like the general principle of revocability, but also some novelties. For example, Articles 35(1) and 35(2)(d), which govern the way goods must be contained or packaged. The only reference to this in Latin America can be seen in the extended comment to "general practices," which appears in legislation and has generated some specific case law.[15] The same can be said for time periods, which under the CISG are longer than under many Latin American codes. For example, the time established for the buyer to examine the goods under Art. 38(1) -- " . . . within as short a period as is practicable in the circumstances" -- provides greater latitude than many Latin American codes.[16] This concession to reasonableness was encouraged by scholars of developing countries.[17]

The extent of performance from a Latin American perspective deserves special comment. A buyer's claim for non-delivery could be referred to as partial or total non-performance (Art. 51(1) CISG). In case of total non-performance, the buyer's situation, despite his problems, generally is clear: The seller did not send what was purchased, which means a fundamental breach of his duties, thus allowing the buyer to declare the contract avoided and to claim damages. However, questions may arise where there is partial performance. In most Latin American codes there is a rule stating that a buyer who agreed to buy an entirety may refuse to accept partial deliveries. Upon this refusal, the buyer may transform seller's partial performance into total non-performance.[18] However, if the buyer has accepted partial delivery, the contract is regarded as performed only with respect to that part, without prejudice to buyer's rights arising from seller's failure to perform [page 9] future deliveries.[19] Consistent with this, when the contract is partly performed, the buyer retains all available options against all unfinished parts of seller's performance. CISG Art. 51 applies this same principle.

Some Latin American texts state that in the case of sale by installments, the contract cannot be declared avoided if the buyer has paid 25% of the price or has made improvements to the purchased item that equates to 25% of the price. This is the rule in Paraguay.[20] In Peru, the required percentage needs to reach 50%.[21] According to the Argentinian Civil Code,[22] if the sale was made on credit and the buyer does not pay the price, the seller cannot declare the contract avoided, but instead will have the right to demand payment of interest.

Some Latin American commercial texts govern the situation in which the seller issues a warranty against malfunction in the goods. In this case, the law gives the buyer 30 days to inform the seller of the malfunction.[23]

All considered Latin American legislation has a specific reference to fructus civiles. These are the natural value increases in the purchased merchandise caused by the passage of time that are recognized under the law. The CISG omits every reference to these time revenues or natural value increases; instead, the passing of risk of Chapter IV is concerned solely with loss and damage. Only the Commercial Codes of Costa Rica, Honduras and El Salvador [24] state specific rules on Incoterms.[25]

III. BUYER'S REMEDIES

Under the CISG, a buyer's remedies against non-performance by a seller may be classified into three groups according to the objective of each. The first group of remedies seeks to salvage the contract. The second group concerns [page 10] avoidance of the contract. The last group seeks to repair or to control the damage done. Here, we will analyze the buyer's remedies under the CISG and under Latin American legislation according to these general categories.

A. Remedies Which Seek to Save the Contract

References to "salvaging the contract" relate to the general attitude of the CISG, which favors preservation of a failing contract rather than its termination. The philosophy of the CISG is that the high expenses usually associated with an international sale should deter a severe reaction, like recission, in response to an obligor's non-performance. The CISG provides a spectrum of different to achieve this goal.

1. Fixing additional time for performance

Art. 47(1) of the CISG states that a buyer may set an additional period of reasonable length for a seller's performance. Under civil law tradition, a provision such as this belongs implicitly to the nature of the so called "consensual contract" or a contract that is made complete based on the party's consent, as is the case with the contract of sale.[26] However, in Latin America, provisions such as these are not undisputed. For example, in Argentina, if the additional period was not explicitly agreed to in the contract, it is not accepted under some case law doctrine. Applying the Latin rule "ubi lex non distinguit, nec nos distinguere debemus" ("where the law does not distinguish, neither may ought distinguish us"), in the case of a seller's temporal impossibility to deliver, case law provides that a buyer is not expected to have to wait for the end of the impossibility.[27]

Mexican scholar Jorge Barrera Graf states that Mexican law does not contemplate a buyer's option to concede to seller any additional performance period. He is of the view that such circumstances could bring procedural difficulties related to statute of limitations and time warranties.[28][page 11] However, this way of thinking does not persuade one that giving an additional period of time to perform the contract should depend only on the will of the contracting parties. In addition, it must be recognized that fixing additional periods of time for performance is not totally unknown in Latin American legal texts. For example, in Argentina, Art. 216 CCoArg states that obligee may concede to obligor an additional period to perform his duty. The obligee may decide to concede nothing; he may prefer instead to declare the contract avoided. But under Argentine law, if he agrees to an additional period of time, the additional time period should not be less than fifteen days and setting such a period does not cause the obligee to relinquish a possible damages claim. The Argentine time limitation does not apply in cases where there exist different customs or usages between the parties, nor does it apply where there is a specific clause in the contract agreeing to a reduced period of time for performance.[29] Similar conclusions result from the application of Art. 1204 CCArg, which regulates the implied resolutory condition discussed below. Article 1204 CCArg provides that in case obligor's duty was not performed, obligee may demand fulfillment within no less than 15 days, unless usage or an express agreement mandates a shorter period.[30]

Art. 950 CCoESal recognizes periods of grace for commercial duties only when the period is expressly established by law. On the other hand, Art. 694 of the Commercial Code of Honduras states that periods of grace to perform are unacceptable in commercial transactions. However, the Honduran Civil Code provides that the party who did not perform can be requested to perform within a convenient period, not less than 15 days.[31] Only the Commercial Code of Colombia treats the existence of a period of grace as an [page 12] extension of the original term established in the agreement. To be recognized, the setting of this period must be made prior to maturity of the original term.[32]

The rule stated in CISG Art. 45(3) -- "No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract" -- is known in Latin America, but with considerable differences. For example, Bolivia,[33] Panama,[34] and Uruguay [35] permit a judge to set a period of grace in an avoidance claim depending on the specifics of the case. However, the commercial codes of Mexico [36] and Ecuador [37] do not accept periods of grace if they are not admitted by the contract or by law.

2. Requiring performance

CISG Art. 46 states that the buyer may require the seller to perform his obligations unless he has resorted to a remedy that is inconsistent with this requirement. This is the main rule. But the CISG provides an exception to this principle: CISG Art. 28 states that a court is not bound to enter a judgement for specific performance unless the court would do so under its own law with similar contracts of sale not governed by the CISG. This provision, inserted at the request of common law countries, is less relevant to the Latin American nations analyzed here. These countries follow the civil law tradition of giving high priority to the requirement of performance.

Which remedies are inconsistent with CISG Art. 46(1) requirements? Certainly they include the declaration of avoidance pursuant to CISG Art. 49 and the requirement of delivery of substitute goods pursuant to Art. 46(2). It has also been said that applying the remedy of price reduction is inconsistent with requiring the seller to perform.[38] Rules in Latin America consistently state that avoidance can be declared despite the requirement of performance, but a party cannot be required to perform once avoidance has [page 13] been declared.[39] Bolivian law applies the same principle, adding that the party who has not performed, can no longer be required to perform once an avoidance request against him was served by the court.[40] Contrario sensu, the period between the factual declaration of avoidance and the notice by the court of the related request, favors the party that has not performed, because performance can be validly carried out during this period. This can sometimes be a meaningful period.

In Chile, the majority rule is that, if he so elects, the buyer can resign the avoidance remedy chosen first and then demand performance.[41] In Venezuela, it is understood that a declaration of avoidance is not entirely the option of the buyer; a judge may rule that preservation of the contract is more consistent with the circumstances of the case and such a ruling will prevail against a buyer's desire to avoid the contract.[42]

Under the CISG, the buyer's right to select the remedy is founded in the Article 46 word "may" ("podrá"). The practicality of the avoidance remedy will likely depend upon the possibility of obtaining due performance. The Civil Code of Uruguay stresses the performance remedy by stating that the buyer may require performance "whenever possible."[43]

3. Demanding substitute goods or repair

Both Art. 46(2) and 46(3) of the CISG state that if goods do not conform to the contract, the buyer may require the seller to deliver substitute goods or to remedy the lack of conformity by repair. In both cases, buyer's request must be in conjunction with notice given under CISG Art. 39 within a reasonable time.

Usually, Latin American codes state that a seller must deliver that which was agreed upon in the contract.[44] The codes have detailed provisions [page 14] on conformity of the goods and on that which must be warranted. Such provisions are contained in the Mexican Civil Code of the Federal District (Art. 2283.III CCDFMex) and in other Latin American codes like those of Colombia,[45] Ecuador,[46] Chile,[47] El Salvador,[48] Argentina,[49] Dominican Republic,[50] Guatemala,[51] Paraguay,[52] and Venezuela.[53] Other codes set forth seller's duty to remedy hidden defects in a separate chapters or sections, as is the case in Peru and Brazil.

Latin American rules place upon the buyer the burden of proving the existence of hidden defects. These rules are more detailed than the CISG. Defects that should be apparent are excluded from seller's warranty to remedy hidden defects. The Latin American rule is that receiving clearly defective goods without protest is equivalent to implicit acceptance of the defective merchandise. There are qualifications to this rule, for example in sales by sample or by model, or sales by destination ("yenta por envio").

Art. 46(3) of the CISG states that if goods do not conform to the contract, the buyer may require the seller to remedy this by repair, unless this is unreasonable under the circumstances. Under Latin American law, requiring a seller to repair defective goods is not specifically listed among a buyer's remedies. However, in some cases this can be an element in a claim for price reduction.

4. Reducing the price

Art. 50 of the CISG provides that if the merchandise does not conform to the contract, the buyer may reduce the price in the same proportion as the difference between the price of the delivered goods at the time of the delivery and the value that conforming goods would have had at that time. The second paragraph of this article states that if the seller has remedied any failure to perform in accordance with Art. 37 or Art. 48, or if the buyer refused performance under these articles, he cannot reduce the price. These [page 15] rules are known and accepted under Latin American law in cases of acceptance of partial delivery and in cases of hidden vices or defects.

The laws of Argentina and Brazil differentiate willfulness of a seller's fault when goods are partially or entirely damaged. The Argentine Civil Code states in Art. 611 CCArg that when goods are partially damaged or lost without seller's fault and the price was previously fixed, the buyer has a right to demand the undamaged or unharmed remainder of the merchandise, with the related price reduction. In the alternative, he may declare the contract avoided. However, if goods were lost or deteriorated because of seller's fault, the buyer has the right to demand the remaining merchandise that is not damaged or lost. Additionally, he may claim damages for the lost or deteriorated part, or he may declare the contract avoided with damages.[54] Argentine law has no counterpart to the Art. 51(2) CISG rule that the buyer can declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach.[55] An analogous rule is encountered, however, in Arts. 866 and 867 CCBra.[56]

5. Postponing buyer's performance

Buyer's main duties are to receive the goods and to pay for them. Additionally, he will be in charge of examining the delivered merchandise and the payment of all expenses produced by transferring the title in the goods.

The CISG allows a party to postpone performance in three cases:[page 16]

i. Art. 71 CISG states that a party may suspend his own performance if, after the conclusion of the contract, it is clear that the other party will not perform his duties as a result of a serious deficiency in his ability to perform or in his creditworthiness, or if his behavior shows that he will not perform.

ii. Art. 52 CISG declares that buyer may refuse to accept a delivery that is early or in greater quantity than provided in the contract.

iii. Art. 66 CISG make it clear that buyer can suspend the payment of the price when loss or damage to the goods was due to an act or omission of the seller.

B. Remedies under Latin American Legislation

1. Deferring performance in general

Provisions similar to CISG's deferment of performance can be found in some Latin American codes. Usually, these texts only provide that the seller may postpone his due performance in clear cases of buyer's insolvency.[57] However, the buyer will also have the right to postpone his remaining duties where there is a clear risk that he may lose the acquired property.[58]

Under Bolivian law, such provisions are broader. Art. 576 CCBol states that each party may postpone performance when the other party's situation jeopardizes fulfillment of his obligations, unless sufficient assurance has been received.[59] A similar rule exists in the Peruvian Civil Code.[60] The Civil [page 17] Code of Guatemala [61] and the Civil Code of Brazil [62] also have such provisions, but add that the damaged party may declare the contract avoided and claim damages. Art. 1168 CCVen is less clear: Each party may refuse performance of his obligations, if the other party does not perform " . . . unless different dates have been set for the performance of their respective obligations."[63] Under the laws of Costa Rica [64] and El Salvador [65] a buyer who fears he may lose possession of the goods may deposit the price with the courts. Buyer's rights along these lines appear in many Latin American texts but with differences. For example, the Civil Code of Chile provides that when buyer has reason to believe that seller has hidden the existence of a prior claim against the goods or that his title in the goods will be otherwise disturbed, he may deposit the price with the court.[66] The deposit will remain with the court until seller has provided sufficient assurance of his performance or when, through seller's intervention, the claim against the property has been satisfied. A similar text exists in Venezuela,[67] Mexico,[68] Dominican Republic [69] and Uruguay.[70]

2. Refusal to accept delivery before fixed time or in different quantity than contractually ageed

Latin American codes usually state that goods must be delivered at the time and in the quantity specified in the contract.[71][page 18] There is much attention to quantity, i.e., dimensions, in code provisions dealing with the sale of real estate [72] while less specific attention is given to the subject in the context of movable goods. For example, the Civil Codes of Chile (Art. 1835 CCChi with reference to Art. 1832 and 1833 CCChi), Colombia (Art. 1891 CCCol with reference to Arts. 1888 and 1889 CCCol), Ecuador ( Art.1802 CCEcu with reference to Arts. 1799 and 1800 CCEcu). The Civil Code of El Salvador (Art.1638 CCESal in connection with Art.1635 and 1636 CCESal) is similarly drafted. In two consecutive articles it refers to the sale of a plot ("predio") measuring its dimensions. Another article applies this concept to sales of movable goods. In every case in which the dimensions of the "predio" are as much as 10% less, then the buyer is permitted to reduce the price to compensate for the discrepancy or to demand the contract avoided. The Civil Code of Honduras, in Articles 1626 and 1627, refers to price reduction for dimensions 10% less, and a price increase for 5% more. However, these rules apply only to the sale of real estate.

The Peruvian Civil Code has a provision titled "sale by measurement" ("compraventa sobre medida"). It states that for sales of goods priced by unit of volume or length, the seller is required to deliver to the buyer the exact quantity established in the contract. If this is not possible and an excess quantity is delivered, the buyer is obliged to pay for the excess of the contract quantity provided. However, if there is an excess or shortcoming of more than 10%, the buyer may declare the contract avoided.[73] With certain differences between sales of real estate and movable goods, the Civil Code of the Dominican Republic refers to discrepancies in the amount of 20%.[74]

Buyer's interests are especially protected when the time for delivery is not specified in the contract. Thus, Art. 1409 CCArg states that seller must deliver purchased goods at the time specified in the contract. However, if a date was not agreed upon, delivery must take place when buyer asks for it. If seller does not deliver the purchased goods in the contractually fixed time, the buyer may declare the contract avoided or demand delivery, and if the seller is unable to deliver, the buyer may demand [page 19] immediate restitution of the purchase price.[75] The Civil Code of the Dominican Republic provides more details than any other Latin American text. There is a clause in Art. 1602 CCRDom under the chapter "seller's duties," which states that seller "must explain his obligations clearly. Anything obscure or ambiguous agreement, will be construed against him."[76] The Commercial Codes of Costa Rica,[77] Nicaragua,[78] Mexico,[79] Ecuador,[80] Panama,[81] Uruguay,[82] Colombia [83] and Argentina [84] go so far as to state that unless otherwise agreed, the seller must hand over merchandise within 24 hours after the conclusion of the contract.[85]

3. Postponing payment

As previously stated , construing CISG Art. 66 contrario sensu as a remedy of the buyer entitles him to postpone payment of the price in the event of loss or damage to the merchandise that occurs after risk has passed when it is due to an act or omission of the seller. In Latin American legal tradition, there is a well known Latin principle related to the passing of risk: res perit domino or "the thing is lost for its owner." In the event of loss or damage to the goods, the proprietor of the goods assumes the risk for loss or damages. Angelici [86] regards this principle as inadequate under a system [page 20] such as the CISG. Latin American laws uniformly hold that until the moment of delivery or "traditio," all risks must be borne by the seller.[87]

As already explained, if buyer has been disturbed in his possession before paying the price, Latin American laws usually permit the buyer to postpone payment until the seller has provided sufficient assurance of performance or has been ordered to eliminate the concern.[88]

4. Claiming damages

Notwithstanding damage reparation, which will be further explained as a third remedy group, the buyer's right to claim damages could also be seen as an adjunct to preserving a failing contract. As seen in Art. 45(1)(b) and 45(2) of the CISG, in the case of breach of contract by the seller, buyer has the right to claim damages as provided in CISG Arts. 74-77. The buyer will not be deprived of his right to claim damages by exercising his right to any other remedy. Art. 925 CcoCol has the same effect. This article states that buyer has the right to request damages in the event of seller's non-delivery. This right may be exercised without pursuing any other remedies.[89]

C. Remedies Which Seek the Contract's Termination

In these cases, the buyer-obligee wishes to maintain the relationship with his obligor-seller counterpart. For this purpose, the buyer seeks to give the contract another chance. Remedies with an entirely different objective will now be reviewed: remedies used to destroy the contract when the obligee believes that his best approach is to get out of it.[page 21]

1. Declaring the contract avoided because of seller's fundamental breach

Article 49 of the CISG is the cornerstone of the buyer's annihilation remedies. It states that the buyer may declare the contract avoided if the failure by the seller to perform any of his obligations under the contract or the CISG, " . . . amounts to a fundamental breach of contract."[90]

Avoidance does not follow automatically from the seller's breach of contract: Art. 46(2) of the CISG states that if the non-conformity of the delivered goods by the seller amounts to a fundamental breach of contract, the buyer may require delivery of substitute goods. One of the main principles of the CISG was to strengthen the possibility to rescue the contract as a first alternative whenever possible. When such rescue is not possible then this extreme remedy begins to play a role.

What are the seller's obligations under the CISG when the failure to perform amounts to a fundamental breach of the contract? When will a partial delivery be understood as non-performance and when will it be looked upon as a start of performance? These questions, as a general rule, cannot be answered without looking into each specific case.

This subject was always a critical point and continues to be so no matter under which legal tradition the question arises. From a scholarly point of view, it is not always easy to determine whether we are facing a seller's total non-performance or the beginning of a delayed performance. This subject has gained special attention regarding the CISG and international interpretation. For example, when having purchased a chemical product for human use called "Human Sulfat" we receive the product, but in a state which is only useful for beast or plants. It could be difficult to understand if we are facing a fundamental breach of seller's duty to deliver a final product or a case of partial performance. The same question perhaps will receive different answers in Latin America and in Europe.

For example, purchasing a final product under Argentine law may create a pure and simple seller's obligation: to deliver an entirety called "car." The simplicity of such entirety is not affected by the complexity of the many assembled parts and functions implicitly included in the meaning of the noun "car." The turning point will be the certain and specific determination of the purchased thing and this determination [page 22] will not be affected by the complexity of it.

In Germany the question under German law would be resolved by the German Civil Code Art. 462 BGB. Under this rule of the so-called "Wandelung" the buyer may demand an action for redhibition terminating the contract. But German case law applying the CISG in a sulfate case resolved to maintain the contract by construing it in a very multinational interpretation, but it was very conflictive and difficult to understand from a Latin American legal tradition.[91]

Elqueta Anguita refers the same problem in Chile.[92] One part of the Chilean doctrine and the main domestic case law understands that any kind of breach of the contract, including breach of secondary duties, will be sufficient to declare the avoidance (so Alessandri Rodriguez, Meza Barros and Vio Vazquez). The other part of the doctrine, adhered to by Elgueta himself and Claro Solar maintains the opposite opinion.

The same problem was seen in Mexico. Barrera Graf [93] understands that Mexican law provides that no kind of non-performance, notwithstanding produced damage, will allow the avoidance of the contract. Sanchez Medal Urquiza [94] accepts the contrary position: Alleged non-performance must have a special significance, especially bearing in mind obligee's interests. This was the idea represented by Ramella [95] in Argentina and Melich Orsini [96] in Venezuela. But both scholars recognized that this conclusion was not accepted by domestic case law, which admitted any non performance as a reason for the avoidance.

The Bolivian Civil Code sets forth in Art. 572 CCBol a principle entirely compatible with the CISG: It will not be possible to declare the avoidance of the contract if the seller's (not performed) duty has no significance [page 23] in comparison to buyer's interest.[97] Similarly, the Civil Code of Paraguay [98] states that the declaration of avoidance will not be accepted if the lack of performance of the other party is of little importance or does not affect the other party's interest.

Articles 51(2) and 73 of the CISG concern the essence of the breach in cases of partial non performance and sale by installments. In Argentina, Art. 468 CCoArg states that cases in which buyer has purchased as a whole a certain quantity of goods without the seller's determinations that certain parcels or parts must be delivered at different times, the buyer cannot be required to accept a portion of the goods under the promise to deliver the rest later. However, when a portion was accepted, the sale is perfected concerning the delivered portion, notwithstanding seller's failure to deliver the rest -- the remedy for which can be a reduction of the price.[99]

Until 1968, the Argentine Civil Code provided in Art. 1204 CCArg what was known in Spanish as "pacto comisorio expreso." This legal expression refers to an expressly resolutory condition that produces the termination of the contract in case something happens, like the obligor's non-performance.[100] After a Civil Code's reform that year by law Nr. 17.711, the implied resolutory condition or "pacto comisorio tácito" was accepted in place of the former expressly resolutory condition. This legal expression means that in contracts with reciprocal obligations, either party may declare [page 24] the contract avoided if the other party has not performed his duty.[101] In spite of the fact that the Argentine Civil Code permits this solution, Art. 1374 CCArg prohibits it on sales of movable goods. The suitability of this restriction has been questioned [102] and, in any event, this prohibition is not applicable to commercial sales of movable goods.[103]

Many Latin American codes permit automatic avoidance and accept the declaration of avoidance without further requirements. Phrases such as "ipso facto" or "sin mas" are encountered in these codes. Argentina is an example. Art. 1204 CCArg states at the end of its second paragraph, that if due obligation is not performed in the additional period, all remaining duties emerging from the contract will be understood as finished without needing further steps.[104]

Uruguay, Brazil and Honduras take the opposite position. In these countries, the contract will not terminate ipso facto but, instead, an obligee's must pursue this through a judicial process.[105] In Honduras, Art. 749 CCoHon provides that for an avoidance to be effective there must be prior information to the counterparts. The Brazilian Commercial Code goes further: to put his obligor in default, the obligee must judicially demand the fulfillment of the obligation.[106] In Chile the law is unclear due to conflicting provisions of the Code.[107][page 25]

2. Avoidance in case of non-performance within the additional period

Art. 47(1) of the CISG provides that the buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations. This is the so-called "period of grace" or "Nachfrist," the latter being the German terminology. Art. 49(1)(b) of the CISG provides that buyer may declare the contract avoided if seller does not deliver within the additional period of time, or declares that he will not deliver within that period.

The treatment of the grace period or additional period in Latin American legislation incorporates all prior considerations introduced above when the additional period is also used as a device to keep the contract alive.

The Bolivian Civil Code refers to the additional period in Art. 570.1 CCBol. This provision describes the giving of a period of grace similar to the one stated in the ClSG. This Bolivian text provides that the party that has already done his duty may demand, through a notarial document sent to the party that has not performed, to perform it in a fixed reasonable period of time that cannot be less than 15 days. In case of non performance, he will declare the contract avoided in the same way as under Art. 49 of the CISG.[108] This text is entitled "avoidance by request" ("resolución por requerimiento"). A similar provision is seen in the Peruvian Civil Code in Arts. 1428 and 1429 CCPer related to the sale contract by Art. 1559 CCPer.

Another implied recognition of the additional period appears in the second paragraph of Art. 1826 CCChi. The related text states that if the seller, by his own fault, delayed delivery, the buyer may persist on the contract [page 26] or desist from it, in both cases claiming damages. But the quoted paragraph expressly states the contract's termination as a consequence of seller's delay and as a result of persisting in the contract without success or declaring its termination.

3. Anticipatory repudiation: declaring in advance the termination of the contract

CISG Art. 72 states that if it is clear prior to the date fixed for contract performance, that one of the parties will commit a fundamental breach of the contract or declares that he will not perform his obligation, the other party, giving notice, if time allows him do so, may declare the contract avoided.

The concept of a declaration of avoidance prior to the date for performance in the manner recognized by the CISG is virtually unknown in Latin American law. The right to suspend payment is more customarily accompanied by the right to avoid the contract, for example, in cases of breach of warranty on the legal and peaceful possession of the goods or in the case of hidden defects.[109]

Usually, the Latin American texts permit only sellers to declare contract avoidance in advance. This is especially true where the seller has grounds enough to presume buyer's insolvency or radical changes in buyer's patrimony.[110] An equivalent buyer's right is practically unknown. Notwithstanding this, Paraguayan Art. 720 CCPar refers to both parties, allowing a party to postpone performance until sufficient assurances are given. But if such assurance is not provided, avoidance is permitted.[page 27]

The Spanish Civil Code and all those that follow it, like the Cuban Civil Code, provide something comparable to the ClSG's provisions, but only in relation to sales of real estate.[111]

The obligations section of the Argentine Civil Code provides that an obligor in a state of insolvency cannot invoke a prior existent and agreed period, in order to perform his delayed obligations, after such declaration of insolvency was issued.[112] Under this rule, the fixed period or term ("plaza") is like a sort of benefit which insolvency tears down.[113] This principle is recognized in other Latin American texts.[114]

Does it mean that one of the parties may declare the contract avoided when it is clear, prior to date of performance, that the other party will not perform? The anticipated fundamental breach may be clear either because of the actions of the obligor or because of situations of force majeure. Art. 72 CISG is much more directed to the anticipatory repudiation known by common law but also to cases of possible application of the clause "rebus sic stantibus" or changing by supervening causes, what is also known by the civil law tradition and will be analyzed below in this paper.[115]

The expression "when it is clear"from the first sentence of Art. 72(1) CISG, after having in mind its commentary, must be understood in a larger way than the Latin American normal meaning. The Official Record describes that a clear future fundamental breach will constitute a contract repudiation or an objective fact" . . . such as the destruction of the seller's plant by fire or the imposition of an embargo or of monetary controls which will render impossible future performance."[116] A [page 28] footnote recognizes that the non-performing party will be excused from damages by virtue of CISG Art. 79.[117] Latin American law resolves the objective fact with the notion of "force majeure," which excuses non-performance in cases where causes are outside the control of the parties. But this subject, as is the case of unaccepted partial performance as fundamental breach for a Latin American law cultural inheritance, will be difficult to construe internationally with some uniformity.

D. Buyer's Remedies Which Seek Damages Reparation

The third group of the ClSG's remedies analyzed in this paper will be those pursuing the reparation of all damages done by seller or seeking their control or reducing their possible harm.

1. Claiming damages

The CISG general rule appears in Art. 45(2): If the seller fails to perform any of his duties, the buyer may exercise his right to other remedies. By doing this the buyer is not deprived of any right he may have to claim damages. Art. 74 CISG calculates basic damages: a sum of money equal to the suffered loss including loss of profit. But the principle of the full recovery is subject to a limitation: The same article states that such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen.

The Official Records states that " . . . the basic philosophy of the action for damages is to place the injured party in the same economic position he would have been in if the contract had been performed."[118] In the case of avoidance, the CISG differentiates between damages where there is and where there is not a substitute transaction.

In comparing the CISG with Latin American approaches to damages, it is appropriate to consider the reach or range of the concept of "damages." It is also appropriate to determine if the damage claim is ancillary to another claim or if it can be independently requested. Finally, in this section the Latin American concept of "moral damages" will also be discussed.[page 29]

2. Measurement of the damage

The CISG has only one comprehensive category of damages. CISG Art. 74 states that:

"Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach forsaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract."[119]

To establish the range of damages caused by the non performance, determining which of the damages suffered will be taken into account to fix the compensation sum, it requires a prior classification to determine which were foreseeable results of the non performance and which were not. To be compensable under the CISG, the damage must be foreseeable.

For the most part, foreseeability is also an element of Latin America law as is shown in Art. 345 and 346 CCBol, Art. 1059-1060 CCBra,[120] Art. 1150 CCRDom, Art.1616 CCCol and Art.1601 CCEcu (the latter two drafted in a similar way), Art. 1321 CCPer,[121] Art. 2110 CCDFMex and Art. 992 CCPan. Art. 1274. CCVen states that the party in breach is liable for damages that were foreseeable or that ought to have been foreseeable at the time of the conclusion of the contract, when the reason for non performance is not wrongful intent.[122] The CISG does not contain language limiting damages to losses which are the "immediate and direct" consequences of the breach. Various Latin American codes contain such language, for example, Art. 1275 CCVen provides that even in case of [page 30] wrongful intent, damages cannot be exceed the immediate and direct consequence of the breach.

Argentina, among other Latin American countries, has two rules: one for cases of wrongful intent ("dolo"). Under Argentine law, the main rule limits damages to the immediate and direct consequence of the non-performance. But Art. 520 and Art. 521 CCArg go on to state that in case of willful and knowing breach, the seller can also be liable for the remote consequences ("consecuencias mediates") of the breach. Referring to casual acts, the Civil Code of Paraguay takes a similar position.[123]

3. Damages in conjunction with other remedies

As explained above, CISG Art. 45(2) provides that, by exercising his right to other remedies, the buyer is not deprived of any right he may have to claim damages. In Latin America, as under the CISG regime, the obligee may request damages as an ancillary part of the main claim. In that case the subordinate claim's chances of success will depend upon the result of the main demand. However, damages may always be independently requested.

The Latin American legal tradition is for demand as a prerequisite for an independent claim, asserting seller's liability. This principle imports a liability compared with that model of behavior of the Latin pater familiae, which is equivalent to the ClSG's reasonable man.[124]

4. Moral damages

In the Latin American legal tradition "moral damage" means intangible injury to feelings, honor, or moral principles, causing pain or suffering. [page 31] Such injuries originate in a tortious act. In spite of the difficulty of assessing moral damage because of its intangible nature, a judge may recognize the existence of such damages and award a compensatory sum of money.[125]

The Argentine Civil Code refers to "agravio morat" (Art. 522 CCArg), a specific and restrictive form of moral damage. The Civil Codes of Ecuador, Mexico,[126] Peru,[127] Bolivia [128] and Venezuela [129] also contain specific rules on moral damages, establishing, however, different ways to measure it. In Ecuador, an un-numbered section of text added between Art. 2258 and Art. 2259 CCEcu provides that, in case of extreme seriousness, an aggrieved party may seek payment of moral damages as an independent claim.

Other Latin American States, which traditionally follow the Spanish Civil Code, make no provisions on moral damages. This is the case in Panama, Chile, Colombia, Dominican Republic and Uruguay.

Clearly, such a specific emotional element would be very difficult to incorporate into an international multilateral agreement like the CISG. However, this absence does not mean that such results do not occur in an international sales when a tortious act is committed. In a contract governed by the CISG in which the gap-filling law is that of a country that allows moral damages, the related party can obtain them.

5. Exercising the right to retain the goods

CISG Art. 86(1) provides that the buyer who received the goods but intends to exercise any right to reject them must preserve them. However, he will be entitled to retain the merchandise until all reasonable expenses have been reimbursed by the seller.

The right to retain in Latin America is provided for in separate chapters or sections of the Civil Code or exists as a specific remedy in the deposit contract. In Argentina for example, the retaining right appears immediately after the section describing privileges or credits' order of preferences. Under the title "Del derecho de retención," Art. 3939 CCArg states that the [page 32] right to retain belongs to the holder and entitles him to keep possession of it, until the payment of what is due is made for the same item.[130] The debt, as provided in this text, must be originated in the held item itself. On the other hand, the obligee cannot retain anything without prior agreement or without a judicial ruling. This general position is also accepted by Art.1279 CCBra, Arts.1828 and 1832 CCGua, Art.1826 CCPar and old Art.1029 CCPer. The new Peruvian text allows a wider spectrum of uses of the right to retain the goods. Art 1123 CCPer has been applied in some specific cases in a way that requires that no direct connection must exist between the held item and the requested credit.[131] The same is provided by Art. 703 CCoHon and Art. 957 CCoESal.

Other civil law Latin American texts provide for the right to retain when they contemplate the contract of deposit. They recognize the power of the receiver to retain the deposited goods until his expenses are reimbursed. This form is seen in the law of Bolivia,[132] Colombia,[133] Costa Rica,[134] Dominican Republic,[135] Ecuador,[136] Panama [137] and Venezuela [138]. Chilean Civil Code specifically states in Art.1872 CCChi the buyer's right to retain the price when seller has not delivered the purchased goods. The equivalent seller's right is ruled in Art.151 CCoChi. But many Latin American Commercial Codes complete in a wider way what was contemplated only as deposit by the Civil Codes.[139][page 33]

Obviously, if a retainer's expenses were not reimbursed, he may request judicial sale of the held item. In that case, merchandise would be auctioned and the retainer could recollect his expenses from the proceeds of the auction. The rest would be returned to seller. Barrera Graf states that in case the buyer were a warehouse or storage house, he may proceed to sell the retained merchandise, and if it is the case, to destroy it when there is a risk to general health or security and it cannot be preserved without unreasonable expense.[140]

6. Requesting interest

In two specific cases the CISG recognizes the request of interest payment:

i. Art. 78 CISG states that if a party fails to pay any sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages;

ii. Art. 84(1) CISG provides that if the seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid.

The CISG is silent on rate of interest. Historically, Latin American laws either specified a fixed interest rate between 6% to 12% yearly [141] or nominated a special organization to set the rate of interest. For example, Art. 1244 CCPer [142] refers to the Peruvian Central Bank. But these positions were taken before the extraordinary wave of inflation which occurred in Latin America. In Argentina, for example, in 1989 the monthly inflation rate was a three digit figure. The devastating effects of such economic disasters eroded the aquisitive power of money on a daily basis and called for new approaches to set rates of interest in the face of rampant inflation. Rates of interest were set based on new-born terminology like the Spanish noun "indexación" [page 34] or the Portugese expression "corregao monetaria." These terms establish an increase in the money's worth equivalent to the increase of the cost of living.

In spite of the fact that inflation belongs mostly to the Latin American past, the danger of inflation remains latent like a vicious reciditive. Consolidation of democracy and the reality of community associations like Mercosur or Nafta, with all their economic implications, should help control inflation.[143]

E. Examples of Latin American Remedies for Breach of Contract Not Contained in the CISG

Discussed below are four Latin American remedies that were not adopted by the CISG. The first two apply to the situation in which the buyer seeks to salvage a failing contract. The latter two are related to the avoidance remedy. These four Latin American remedies have in common the fact that a buyer can seek them without prior reference to them in the contract.

Other remedies can be set forth in the contract, for example, the "retracto legal" or the property reservation clause.[144] However, such remedies are beyond the scope of this paper.

1. The Right to Obtain Performance by a Third Party

Art. 77 CISG provides that a party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss. Art. 28 CISG on the other hand states that a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by the CISG. May a court order specific performance by a third party when the obligor refuses to perform? Perhaps, under certain circumstances, performance by a third party may be seen under CISG Art. 77 as a form to mitigate the losses.[page 35]

The Latin American position is very clear: Where seller does not perform, buyer's right to obtain performance from a third party in case of obligor's refusal of fulfillment of his duties, but charging the latter the cost of such performance, is recognized by all Latin American compared legislation, though with differences. Art. 505.2a. CCArg provides for a obligee's right to procure performance from a third party and to charge the obligor the cost of it, but with prior judicial waiver. This rule appears also in Art. 467 CCoArg. The same principle appears, among others, in Ecuador,[145] Peru,[146] Colombia [147] and Paraguay[148]. Other texts, like Venezuela,[149] accept performance by a third party only when what it is due is the fulfillment of an obligation of doing something ("obligation de dar').

Performance by a third party cannot be demanded when the obligation can be performed only by the obligor or it refers to a specific identified good.

2. The Argentine "Astreintes."

The Argentine civil law reform in 1968 (Law n 17.711) introduced a proceeding of French origin: the "astreintes" or proceeding to obtain a judicial fine -- which could be on a daily, weekly, monthly, etc. basis -- in case of non-performance of a pending obligation.[150] The "astreintes" presumes the existence of an obligor's deliberately unfulfilled obligation. It is a compulsory judicial way to obtain performance. As such, it can be regarded as another remedy designed to preserve a failing contract.

3. Avoidance in instances of unforessable excessive hardship

Art. 79(1) CISG provides for cases of force majeure. Additionally, in some Latin American countries there is an opportunity to declare a contract avoided under the "teoria de la imprevisión," when extraordinary and unforeseeable events arise which render performance excessively expensive.[151] Similar to the ClSG's references to a "reasonable man," the standard [page 36] applied is that of a reasonable head of family or a good pater familae should not, in normal circumstances, have been able to foresee the unexpected event.[152] This is a specific application of what in Europe is known as the result of a clause rebus sic stantibus. To understand this concept properly, it must be recognized that the objective is not to permit better business but to protect against a ruinous development. For example, in the past, a contract party in Latin America should expect cost increases because of inflation. That was normal and foreseeable. But, suddenly, a government devaluation of national currency could occur, starting a stampede in every exchange bureau, with customers trying to change national money against US Dollars. The stampede is uncontrollable, rocketing prices beyond all possible expectancies. The party in a contract with this country should expect some sort of contingency but what happens was unforeseeable and such lack of foresight is known as "imprevisión."

In Latin America this concept has various applications: some Civil Codes like those of Argentina [153], Bolivia [154], Honduras [155] and Guatemala [156] refer to avoidance through excessive onerousness or "resolución por excesiva onerosidad." In these jurisdictions, in cases of bilateral commutative agreements or unilateral onerous contracts, where there has been neither fault nor delay by the concerned party, and extraordinary circumstances have arisen, he may seek to declare the contract avoided when the fulfillment of his pending duty would become so unexpectedly expensive that his performance is unbearable. The party expecting performance forestalls avoidance of the contract by offering to ameliorate the results.[157][page 37]

Followers of the Spanish Civil Code, on the other hand, like Colombia or Ecuador, have the concept of laesio enormis,[158] which is discussed in more detail below. Brazil, Mexico and Panama do not accept laesio enormis, although it can probably be introduced by case law.[159] The Civil Code of Uruguay does not expressly accept this concept.[160]

Countries that accept this doctrine require the fulfillment of prior conditions:

i. The avoided contract should pertain to future performance; immediate performance is covered by the remedy of laesio enormis.

ii. The cost associated with changed performance due to extraordinary events should exceed all reasonable provisions made at the conclusion time of the contract.

iii. The performance of the obligation which now turned to be excessively expensive must be pending.

Bolivia accepts this concept only with respect to non-aleatory contracts -- Art. 562 par. 1 and 2 CCBol. Even if Argentine law accepts the concept, the onerousness must be other than the normal risk of the contract. Where not expressly addressed in Latin American codes, principles of equity and good faith can make this concept a part of contract law.[161]

4. Laesio enormis

In Latin America, usually this remedy is inapplicable to commercial contracts [162] or to the sale of movables,[163] but there are exceptions. Honduras [page 38] Commercial Code accepts it in Art. 754 CCoHon but not for aleatory contracts.

Objective laesio enormis is explained in the Velez Sarfield's footnote of Art. 943 CCArg with very interesting references. Subjective laesio enormis appears on Art. 954 CCArg. The second one, the subjective figure, describes a disproportionate result because one party took advantage of the lack of knowledge, inexperience or imprudence of the other party. The Peruvian Civil Code, for example, provides that a disproportion between obligations equal or superior to two-thirds presumes exploitation [164] -- Art. 1448 CCPer. The Bolivian Civil Code, as is the case with the lack of foresight theory, does not apply the doctrine of laesio enormis to aleatory contracts.

IV. CONCLUSION

In this paper we discussed buyer's remedies under two different perspectives. That from an international agreement as the CISG on one hand, and on the other hand, the perspective from a specific Roman legal tradition as the Latin American. We have seen coincidences and differences and we can predict a little which probable decision could be issued in a Tribunal of this continent on some specific subjects. In spite of the possible different interpretations related to the extent of performance and in spite of some difficulties found in its wording, I believe that we have a fair and useful instrument to harmonize international commerce related to sale of goods.[page 39]


FOOTNOTES

* University of Buenos Aires (Arg), Dr. fur., University of Saarland (Ger). A first German draft of this article, though different in many aspects, was part of the Swiss Feschrift Neumayer. I wish to thank my friend Al Kritzer for his suggestions on this paper.

1. Main abbreviations used in this article: Codigo Civil = CC, Codigo de Comercio = CCo. After the related code the abbreviation of the Nation of the cited text will be added: Arg =Argentine, Bra = Brazil, Bol = Bolivia, Col = Colombia, Chi = Chile, CR = Costa Rica, Cub = Cuba, RDom = Dominican Republic, E= Spain, Ecu = Ecuador, ESal = El Salvador, Ger= Germany, Gua = Guatemala, Hon = Honduras, Per = Peru, Par = Paraguay, Pan = Panama, Nic = Nicaragua, DFMex = Federal District Mexico, ROU= Uruguay, yen= Venezuela. Revista Juridica La Ley (Arg).

2. United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, U.N. Doc. A/CONF. 97/18, Annex I, reprinted in 19 I.L.M. 668 [hereinafter CISG].

3. Argentina ratified the CISG on 7/19/83 and it has been in force there since 1/1/88. Chile ratified 2/17/90, in force since 3/1/91, Cuba ratified 11/2/94, in force since 12/1/95, Ecuador ratified on 01/27/92, in force since 2/1/93 and Mexico ratified 12/29/87, in force since 1/1/89. Venezuela signed the Convention but ratification is still pending.

4. See Pace Internet database on the CISG, <http://www.cisg.law.pace.edu>; CISG online Internet database of University of Freiburg <http://www.jura.uni-freiburg.de/ipr1/cisg/title.htm>. See generally Michael R. Will, CISG International Bibliography 1995, which has many Latin American references, UNILEX (International Case Law and Bibliography on the UN Convention on Contracts for the International Sale of Goods) 1996 and the CISG bibliographies published by UNCITRAL.

5. See Alejandro Garro, Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods, 23 The Int'l Lawyer 443-83 n. 2 (1989).

6. International Institute for the Unification of Private Law, Principles of International Commercial Contracts (Rome 1994) [hereinafter UNIDROIT Principles].

7. But see Raúl Diez Duarte, La Compraventa en sel Codigo Civil Chileno 148 (1988), who makes a semantic distinction between "entrega" or delivery and "tradición" or Latin "traditio": the former is general; the latter is specific. An example of this manner of introducing seller's obligation is found in Chapter IV of the Uruguayan Civil Code. It contains only one article -- 1686 CCROU -- which states: "Las obligaciones del vendedor se reducer en general a dos: la entrega o tradición, y el saneamiento de la cosa vendida. La tradición se verifica conforme a las reglas establecidos en el Titulo III del Libro Tercero." The same text may be seen in Art. 1824 CCChi, Art. 1880 CCCol and Art. 1791 CCEcu. Art. 1486 CCVen contains the same text although without the last paragraph related to traditio. However, the immediate section after this article addresses that subject. Art. 1070 CCCR refers only to delivery.

8. See Art. 614 CCBol, which states "[El] vendedor tiene respecto al comprador, las obligaciones principales siguientes: 1) Entregarle la cosa vendida. 2) Hacerle adquirir la propiedad de la cosa o el derecho si la adquisición no ha sido efecto inmediato del contrato. 3) Responderle por la evicción y los vicios de la cosa." See also Art. 759 CCPar.

9. See Art. 1549 CCPer for the Spanish "perfeccionar."

10. See Art. 1809 CCGua.

11. See, e.g., Art. 149 CCoChi, Art. 466 CCoCR, Art.355 CCoNic, Art. 763 CCoPan, Art. 529 CCoROU, Art. 923 CCoCol, Art. 149 CCoVen, Art. 194 CCoEcu, Art. 200 CCoBra and Art. 463 CCoArg.

12. According to the Black's Law Dictionary 1150 (5th ed. 1979) "redhibitory defect" or "vice" means in the civil law tradition "a defect in an article sold, for which the seller may be compelled to take it back; a defect against which the seller is bound to warrant."

13. "Es obligación esencial del vendedor perfeccionar la transferencia de la propiedad del bien." Art 1549. The adjective used in Latin America will usually be "esential." See Art. 751 CCoHon and Art. 143 CCoVen.

14. See Art. 516 CCoROU

15. See "Safra," CNPenal Ecnico, Sala II, [1984-C], f1. 64.

16. Time periods to inspect covered merchandise varies throughout Latin America. It is 3 days in Argentina (Art. 472 CCoArg,), Chile (Art. 159 CcoChi), Uruguay (Art. 520CCoROU), and Panama (Art. 772 CcoPan); 4 days in Honduras (Art. 772 CcoHon); 5 days in Costa Rica (Art. 450 CcoCR); 8 days in Venezuela (Art. 145 CcoVen), Ecuador (Art. 192 CcoEcu), and El Salvador (Art. 1019 CcoESal); and 10 days in Brazil (Art. 211 CcoBra).

17. See K. Date-Bah, The Convention on the International Sale of Goods from the Perspective of the Developing Countries, in La Vendita Internazionale 29 (Giuffrè ed. 1981).

18. See Art. 375 CCoMex, Art. 1835 CCChil, Art. 157 CCoChi, Art. 1638 CCSal, Art. 462 CCCR, Art. 775 CCoPan, Art. 537 CCoROU, Art. 927 CCoCol, Art. 200 CCoEcu, Art. 203 CCoBra and Art. 468 CCoArg. For example, the first paragraph of Art. 468 CCoArg states: "El comprador que haya contratado por junto una cantidad determinada de efectos, aunque sea por distintos precios, pero sin designación de parses o loses que deban entregarse en épocas distintas, no puede ser obligado a recibir una porción bajo promesa de entregarle posteriormente lo restante." Id.

19. Art. 468 CCoArg further states: "Sin embargo, si espontánearnente conviniere en recibir una parse, queda irrevocable y consumada la yenta, en cuanto a los efectos que recibió, aún cuando el vendedor false a la entrega de los demas . . ." Id

20. See Art. 782 CCPar.

21. See Art. 1562 CCPer.

22. See Art. 1429 CCArg.

23. See Arts. 932-33 CCoCol and Art. 1021 CCoESal.

24. See Arts. 473 and 475 CCoCR, Arts. 786-90 CCoHon and Arts. 1029-35 CCoESal.

25. International Chamber of Commerce, Incoterns 1990 (ICC Publication No. 460).

26. See Art. 1140 CCArg, which provides that consensual contracts are perfected as to the operation of their particular terms at the moment the parties mutually express their consent.

27. See, among other cases, 75 Jurisprudencia Argentina 910 (1941), 5 L.L. 41.

28. See Jorge Barrera Graf, La Convención de Viena sobre los contratos de compraventa internacional de mercaderias y el derecho mejicano, in Anuario Juridica 925, n. 13, T. II (Universidad Nacional Autonoma de Mexico ed. 1981).

29. The Spanish text reads: ". . . No ejecutada la prestación, el acreedor podrá requerir al incumplidor el cumplimiento de su obligación en un plazo no inferior a 15 días, salvo que los uses o un pacto expreso estableciera uno menor, con los daños y perjuicios derivados de la demora. Transcurrido el plazo sin que la prestación haya sido cumplida, quedaran resueltas, sin más, las obligaciones emergentes del contrato con derecho pare el acreedor al resarcimiento de los daños y perjuicios."Art. 216 CcoArg.

30. Art. 1204 CCArg, second paragraph, states: "No ejecutada la prestación el acreedor podrá requerir al incumplidor el cumplimiento de su obligatión en un plazo no inferior a quince dies, salvo que los uses o un pacto expreso establecieran uno menor. . . ."Id.

31. "El que incumple podrá ser requerido por la contraparte pare que cumpla su obligación dentro de un plazo conveniente, no inferior a quince días, a no ser que la naturaleza del contrato, los usos o el pacto perrnitieren un plazo menor."Art. 748 CcoHon.

32. See Art. 829, para. 2, CCoCol.

33. Art. 568.1 CCBol.

34. Art. 1009 CCPan.

35. Art.1431 CCROU.

36. Art. 84 CCoDFMex.

37. Art. 153 CCoEcu.

38. See Karl. H. Neumayer and Catherine Ming, Convention de Vienne sur les contrats de vente internationals de merchandises 330 (1993).

39. See Art. 1204 CCArg, Art. 216 CcoArg, Art. 1949 CCDFMex, and Art. 376 CcoMex.

40. See Art. 568 II CCBol, which states: "Si se hubiere demandado solamente la resolucion, no podŕa ya pedirse el cumplimiento del contrato; y el demandado, a su vez, ya no podŕa cumplir su obligación desde el die de su notification con la demanda."

41. See Luis Claro Soler, Explicaciones de derecho civil chileno y comparado, in 10 Juridica de Chile 171 (1979).

42. See Jose Melich Orsini, La resolucion del contrato por incumplimiento 297 (1979).

43. See Art. 1431 CCROU, which states: "cuando sea posible . . . podra exigir el cumplimiento de la obligation."

44. See, e.g., Art. 1884 CCCol or Art. 1426 CCArg.

45. See Art. 1880 CCCol.

46. See Art. 1791 CCEcu.

47. See Art. 1824 CCChi.

48. See Art.1627 CCESal.

49. See Art.1414 CCArg.

50. See Art. 1603 CCRDom.

51. See Art. 1809 CCGua.

52. See Art. 759(d) CCPar.

53. See Art.1486 CCVen.

54. Art. 611 CCArg states: "Si se perdiese o deteriorase sólo en parse, sin culpa del deudor, el acreedor tendrá derecho pare exigir la entrega de la cantidad restante y no deteriorada, con disminucion proporcional del precio si estuviese fijado, o pare disolver la obligacion." Art. 612 CCArg states: "Si se perdiese o deteriorase sólo en parse por culpa del deudor, el acreedor tendrá derecho pare exigir la entrega de la cantidad restante y no deteriorada, y de la correspondiente a la que faltare o estuviere deteriorada con los perjuicios e intereses, o pare disolver la obligación con indemnización de perjuicios e intereses."

55. See Art. 469 CCoArg.

56. Art. 866 CCBra states: "Deteriorada a coisa, nâo sendo o devedor culpado, podera o credor resolver a obrigacão, ou aceitar a coisa, abatido ao seu preço o valor, que perdeu." Art. 867: "Sendo culpado o devedor podera o credor exigir o equivalente ou aceitar a coisa no estado em que se acha, com direito a reclamar, em um ou em outro cave, indenizaçao das perdas e danos."

57. See, e.g., Art. 1131 CCBra, Art. 2286 CCDFMex, Art. 1073 CCCR, Art. 1826 CCChi and Art. 1688 CCROU.

58. See, e.g., Art. 1530 CCVen. It states: "Si el comprador fuere perturbado o tuviere fundado temor de serlo por una acción, sea hipotecaria, sea reivindicatoria, puede suspender el pago del precio haste que el vendedor haya hecho cesar la perturbación o el peligro, a no ser que el vendedor de garantia suficiente , o que se haya estipulado que, no obstante cualquiera contingencia de esta clase, el comprador verifique el pago." Id.

59. Art. 576 CCBol states : "(suspensión del cumplimiento del contrato) Cada una de las parses puede suspender el cumplimiento de su prestación si las condiciones patrimoniales de la otra parse llegan a ser tales que ponen en peligro de no cumplir la contraprestacion debida, a menos que preste una garantia suficiente." See also Art. 6~3.11 CCBol, which describes the case of buyer's insolvency after the sale.

60. See Art. 1427 CCPer.

61. See Art. 1540 CCGua.

62. See Art. 1092 CCBra.

63. Art. 1168 CCVen: "En los contratos bilaterales, cada contratante puede negarse a ejecutar su obligación si el otro no ejecuta la suya, a menos que se hayan fijado fechas diferentes pare la ejecución de las dos obligaciones." Id.

64. See Art. 1088 CCCR

65. See Art. 1674 CCESal

66. See Art. 1872 CCChi.

67. See Art. 1530 CCVen.

68. See Art. 2299 CCDFMex.

69. See Art.1653 CCRDom.

70. See Art.1730 CCROU.

71. See, e.g., Art. 1884 CCCol which states that a seller is obliged to deliver what was agreed in the contract ("El vendedor es obligado a entregar lo que reza el contrato"). Similar provisions are found in Art. 1828 CCChi, Art. 1795 CCEcu and Art. 1689 CCRou.

72. See, e.g., Arts. 601-05 CCBol, Arts. 748-51 CCPar and Art. 1691 CCRou, all of which are applicable only to real estate. For more detailed attention to this subject see Art. 1344 CCArg.

73. See, e.g., Arts. 1574 and 1575 CCPer. See also Arts. 1076-80 CCCR and Art. 1822 CCGua.

74. Arts. 1619 and 1624 CCRDom.

75. See Arts. 1412-13 CCArg.

76. "El vendedor debe explicar con claridad a lo que se oblige. Cualquier pacto oscuro o ambiguo, se interpreta contra el vendedor." Art. 1602 CCRDom.

77. See Art. 465 CCoCR.

78. See Art. 352 CCoNic.

79. See Art. 379 CCoMex.

80. See Art.189 CCoEcu.

81. See Art. 758 CCoPan.

82. See Art. 530 CCoROU.

83. See Art. 924 CCoCol.

84. See Art.464 CCoArg.

85. For example, Art. 924 CCoCol states: "El vendedor debera tracer la entrega de la cosa dentro el plazo estipulado. A falta de estipulacion debera entregarla dentro de las veinticuatro horas iguientes al perfeccionamiento del contrato, salvo que la naturaleza del mismo o de la forma como deba hacerse la entrega se desprenda que pare verificarla se requiere un plazo mayor."

86. See Carlo Angelici, La discipline del pasaggio dei rischi, in La Vendita Internazionale 221-22 (Giuffrè ed. 1981).

87. See Art. 577 CCArg, which states: "Antes de la tradición de la cosa, el acreedor no adquiere sobre ella ningún derecho real." A Chilean scholar has made a distinction between the general concept -- "delivery" or "entrega" in Spanish -- and the specific "traditio." In all cases, traditio meant delivery, but not all delivery could be defined by the term traditio. See Raul Diez Duarte, La Compraventa en el Codigo Civil Chileno 201 (1988).

88. See among others already quoted, Art. 1872 CCChi and Art. 1730 CCROU.

89. "El comprador tendrá derecho a exigir el pago de perjuicios por el incumplimiento del vendedor a su obligación de hacerle tradición válida, sin necesidad de instaurar previamente cualquiera de las acciones consagradas en el artículo 1546 del Codigo Civil y 870 de este Libro." Art. 925 CcoCol.

90. Art. 49(1)(a) (CISG).

91. See Alfredo Colmo, De las obligaciones en general 216 (1920). But see Burghard Piltz, Neue Entwicklungen im UN-Kaufrecht, Neue Juristische Wochenschrift 2768 (NJW)1996.

92. See Augusto Elquita Angüita, Resolución de contratos y excepción de pago, in Editorial Jurídica de Chile: Santiago 31 ff (1981).

93. See Graf, supra note 28, at 945.

94. See Sánchez Medal Urquiza, La resolución de los contratos por incumplimiento 109 (1980).

95. See Anteo Ramella, La resolución por incumplimiento 57 (1975).

96. See Orsini, supra note 42, at l76.

97. See Art. 572 CCBol, under the title "Gravedad e importancia del incumplimiento," which states: "No habrá lugar a la resolución del contrato si el incumplimiento de una de las parses es de poca gravedad o de escasa importancia teniendo en cuenta el interés de la otra parte."

98. See Art. 724 CCPar.

99. "El comprador que haya contratado por junto una cantidad determinada de efectos, aunque sea por distintos precios, pero sin designacion de parses o loses que deban entregarse en epocas distintas, no puede ser obligado a recibir una porcion bajo promesa de entregarle posteriormente lo restante. Sin embargo, si espontaneamente conviniere en recibir una parse, queda irrevocable y consumada la yenta, en cuanto a los efectos que recibió, aun cuando el vendedor false a la entrega de los demas, salvo, por lo que toca a estos, la opcion que le toca el articulo precedente." Art. 468 CCoArg.

100. The former Art. 1204 CCArg stated: "Si no hubiere pacto expreso que autorice a una de las parses a disolver el contrato si la otra no cumpliere, el contrato no podrá disolverse, y sólo podrá pedirse su cumplimiento." (If there is no express agreement that authorizes one of the parties to declare the contract avoided if the other party has not performed its duty, the contract cannot be avoided).

101. The first paragraph of new Art. 1204 CC Arg provides: "En los contratos con prestaciones recípricos se entiende implícita la facultad de resolver las obligaciones emergentes de ellos en cave de que uno de los contratantes no cumpliera su compromiso. . . . " Id. This is the position provided by Art. 1124 CCCub, Art. 1532 CCEcu, Art. 199 CCoEcu, Art. 1092 CCBra, Art. 202 CCoBra, Art. 1009 CCPan, Art. 754 CCoPan, Art. 725 CCPar, Art. 1428 CCPer, Art. 1546 CCCol, Art. 870 CCoCol, Art. 534 CCoROU, Art. 156 CcoChi, Art. 1949 CCDFMex, and Art. 376 CCoMex.

102. See Jorge J. Llambias, Codigo Civil Anotado 441, Vol. III-A.

103. See Art. 216 CCoArg and Art. 451 CCoArg.

104. "[T]ranscurrido el plazo sin que la prestación haya sido cumplida, quedarán resueltas, sin más, las obligaciones emergentes del contrato. . . ." Art. 1204 CCArg.

105. See Art. 1431 CCROU.

106. See Art. 205 CcoBra, which states: "Para o vendedor ou comprador poder ser considerado em more, é necessario que precede interpelaçao judicial da entrega da coisa vendida, ou do pagamento do preço."

107. Art. 1489 CCChi declares the implied resolutory condition. The second paragraph, after referring to the non-performance of duties, provides: "pero en tal cave podrá el otro contratante pedir a su arbitrío o la resolucióno el cumplimiento del contrato, con indemnización de daños y perjuicios."

Elgueta Anguita understands the expression "pero en tat cave podrá . . . pedir," as the opposite of what was previously provided in the Code, because Arts. 1487 and 1488 CCChi provide for termination of the contract by application of the implied resolutory condition as an (by that very fact) ipso facto result. See Elgueta Anguita, supra note 87, at 85. However, that phrase translated to English as "but in that case he may . . . request" shows that termination is not ipso facto.Main Chilean case law and doctrine is inclined to accept that only a judicial decision will declare the termination of the contract. Other opinions understand that termination was already obtained with the introduction of the claim.

108. Art. 570.1 CCBol states: "La parse que ha cumplido su obligación puede requerir a la parse que incumple mediante note di ligenciada notarialm ente, que cumpla la suya dentro de un término razonable no menor a quince días con apercibimiento de que, en caso contrario, el contrato quedará resuelto."

109. For example, Bolivian Civil Code admits that in case seller does not free the purchased goods from any pledges or other impediments in a judicially fixed additional period, buyer may declare the avoidance of the contract and claim damages. Art. 638.2 CCBol provides: "Cuando la cosa vendida se encuentra gravada con garantías reales o sujetas a vínculos de embargo o secuestro, cave en el cual además, si el vendedor no libera la cosa en el término que debe fijar el juez, el comprador puede demander la resolución del contrato y el resarcimiento del daño conforme al artículo 596." Compare Art. 1088 CCCR and Art. 638.2 CCBol

110. See Art. 623.2 CCBol, Art.2287 CCDFMEx, Art. 1131 CCBra, Art. 1793 CCEcu, Art. 1826 CCChi, Art. 1882 CCCol, Art. 1629 CCESal, Art. 1688 CCROU, Art. 1493 CCVen, Art. 1467 CCCub, Art. 1073 CCCR, Art. 1613 CCRDom, Art. 1624 CCHon, Art. 2594 CCNic, Art. 1419 CCArg,, Art. 1237 CCPan. It is interesting to note that Art. 147 CCoChi. and Art. 448 CCoCR allow a buyer to demand delivery of cancelled invoices by showing seller's prior title.

111. See Art. 1503 CCEsp, which states: "Si el vendedor tuviere fundado motive pare temer la perdida de la cosa inmueble vendida y el precio, podra promover inmediatamente la resolucion de la yenta." Art. 1503 CCCub states that if seller has reasonable grounds to presume that sold real estate or paid price are at risk to be lost, he may promote immediate termination of the contract.

112. See Art. 572 CCArg. "El deudor constituido en insolvencia y los que lo representen no pueden reclamar el plazo pare el cumplimiento de la obligation." Id.

113. See Camara Federal de Apelaciones 31 E. D. 30 (1970) (Revista Juridica El Derecho - Arg.).

114. See, e.g., Art. 315 CCBol, Art. 1188 CCRDom, Art. 1215 CCVen, and Art. 1015 CCPan.

115. See generally Jorge Moss et Iturraspe, La Frustracion del Contrato (1991).

116. Commentary on the Draft Convention on Contracts for the International Sale of Goods prepared by the Secretariat, document A/CONF.97/5, Art. 29, No. 5 -- United Nations Conference on contracts for the International Sale of Goods, Official Records, New York, 1981 (A/CONF.97/19), 53 [hereinafter Official Records].

117. See id.

118. Id.

119. CISG Art. 74.

120. ". . . alem do que ele efetivamente perdeu, o que razoabelmente deuixou de lucrar."Art. 1059 CCBra.

121. However, it is not clear to the foreign reader which consequence the wrongful intent will bring.

122. "El deudor no queda obligado sino por los danos y perjuicios previstos o que han podido proverse al tiempo de la celebracion del contrato, cuando la falta de cumplimiento de la obligacion no proviene de su dolo . . ." Art. 1274 CCVen.

123. See Art. 1856 CCPar. which states"El obligado a indemnizar el dano que le sea imputable resarcira sodas las consecuencias inmediatas, y las mediates previsibles, o las normales segun el curso natural y ordinario de las cosas, pero no las casuales, salvo que estas deriven de un delito y debieran resultar segun las miras que el agente tuvo al ejecutar el hecho." Id. It is not very clear which consequence could be "casual" but nevertheless foreseen by the perpetrator.

124. Art. 947 CCoESal establishes another main principle: all commercial duties must be performed with the diligence of a good commercial man in his own business: "Las obligaciones mercantiles deben cumplirse con la diligencia de un buen comerciante en negocio propio."Id.

125. See Art. 1916 CCDFMex. See also J.J. Llambias, Compendio de derecho civil -- Obligaciones 107 (1971).

126. See Art. 1916 CCDFMex.

127. See Art.1322 CCPer.

128. See Art. 994 CCBol.

129. See Art. 1196 CCVen.

130. Art. 3939 CCArg states: "El derecho de retención es la facultad que corresponde al tenedor de una cosa ajena, pare conservar la posesión de ella hasta el pago de lo que le es debido por razón de esa misma cosa."

131. Art. 1123 CCPer rules: "Por el derecho de retención un acreedor retiene en su poder el bien de su deudor si su crédito no esta suficientemente garantizado. Este derecho procede en los casos que establece la ley o cuando haya conexión entre el crédito y el bien que se retiene." Id.

132. See Art. 857 CCBol.

133. See Art.2258 CCCol.

134. See Art.1357 CCCR.

135. See Art. 1948 CCRDom.

136. See Art. 2166, 2167 CCEcu.

137. See Art. 1473 CCPan.

138. See Art.1774 CCVen.

139. This is the case with Art. 196 CCoEcu, Arts. 122 and 123 CCoVen, Art. 351 CCoNic, Art. 533 CCoRou and Art. 765 CCoPan.

140. See Graf, supra note 28, at 951.

141. This is the case with Art. 1062 CCBra, Art. 1617 par. I CCCol, Art. 2395 CCDFMex and Art. 108 CCoVen. The Spanish Codigo de Comercio accepts that "today" the legal interest is fixed on 10%. See also Art. 341 CCoE.

142. Art. 1244 CCPer states: "La tasa del interés legal es fijada por el Banco Central de Reserva del Peru." Id. Other institutions are established by Art. 707 CCoHon and Art. 960 CCoESal.

143. In Argentina, for example, "indexación" was expressly prohibited in 1991 by law.

144. Reserve of property is permitted by Art. 458 CcoCR and Art. 781 CcoHon. See also Section V, of the non-numerated article between Arts. 202 and 203 CCoEcu, and Art. 952 CCoCol. However, see later Art. 954 CcoCol, which forbids reserve of property in commercial sales.

145. See Art. 1596(1) CCEcu.

146. See Art. 1219(2) CCPer.

147. See Art. 1610(2) CCCol.

148. See Art. 420(b) CCPar.

149. See Art.1266 CCArg.

150. Art. 666 Bis CCArg. states: ". . . Los jueces podran importer en beneficio del titular del derecho, condenaciones conminatorias de carácter pecuniario a quienes no cumplieron deberes jurídicos impuestos en una resolución judicial. . . ."

151. See Paragraph 2, Art. 1198 CCArg.

152. See generally Lily R. Flah and Miriam Smayevsky, Teoria de la imprecisión (1989).

153. Art. 1198 CCArg.

154. Art. 581 CCBol.

155. Art. 757 CCoHon.

156. Art. 1330 CCGua.

157. Art. 1198 CCArg states: "Los contratos deben celebrarse, interpretarse de buena fe y de acuerdo con lo que verosimilmente las parses entendieron o pudieron emender, obrando con cuidado y provisión. En los contratos bilaterales conmutativos y en los unilaterales onerosos y conmutativos de ejecucion diferida o continuada, si la prestacion a cargo de una de las parses se tornara excesivamente onerosa, por acontecimientos extraordinarios e imprevisibles, la parse perj udicada podra demander la resolucion del contrato . El mismo principio se aplicara a los contratos aleatorios cuando la excesiva on.erosidad se produzca por causes extranas al riesgo propio del contrato. En los contratos de ejecucion continuada la resolucion no alcanzara a los efectos yo cumplidos. No procedera la resolucion, si el perjudicado hubiese obrado con culpa o estuviese en more. La otra parse podra impedir la resolucion of reciendo mejorar equitativamente los efectos del contrato." Id.

158. Laesio enormis means a disproportionate relationship between what one party is giving and the other is receiving.

159. Brazil like Argentina, issued since 1971 a series of laws and executive decisions concerning this currency correction or correção o reajuste monetario.

160. See Art. 1291 CCROU.

161. See Maria Carreras Maldonado, Revision del contrato por cambio extraordinario e imprevisible de las circumstancias in, Libro del Cincuentenario del Codioo Civil 37 (1975).

162. Compare Art. 220 CCoBras which excepts fraud, error or simulation and Art. 385 CCoMex.

163. See Art. 1858 CCEcu. However, compare with Art. 1949 CCCol.

164. See Art. 1448 CCPer.


Pace Law School Institute of International Commercial Law - Last updated January 12, 2001
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